Opinion

Critics may bolster Roberts’ resolve

Washington  In one of his characteristic conniptions about people who frustrated him, Theodore Roosevelt, progressivism’s first president, said of Justice Oliver Wendell Holmes, “I could carve out of a banana a judge with more backbone than that.” TR was as mistaken about Holmes’ spine as are various progressives today about Chief Justice John Roberts’.

They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional. The crucial question is whether Congress exceeded its enumerated power to regulate interstate commerce when it mandated that individuals engage in commerce by purchasing health insurance.

Justice Anthony Kennedy is generally considered today’s swing vote, but his acerbic first question to the administration’s lawyer during the second day of oral argument changed assumptions: “Can you create commerce in order to regulate it?”

Concluding that Kennedy might be disposed to overturn the mandate, some Obamacare defenders decided that Roberts’ vote will be decisive. They hope to secure it by causing Roberts to worry about his reputation and that of his institution.

Recently, for example, Vermont’s Pat Leahy, chairman of the Judiciary Committee, delivered a Senate speech defending the constitutionality of what he calls the “personal responsibility requirement.” (This is his Orwellian appellation for the mandate, whereby government coercion nullifies personal choice regarding insurance.) After 37 years in the Senate, Leahy probably no longer knows when he sounds insufferably patronizing, as he did when he said that during oral argument he thought Roberts “seemed well aware of the significance of (the Obamacare) decision.” And “I thought I saw a chief justice who understands the importance of this case to all Americans.” And Roberts “seemed to understand” the deference owed to Congress.

Leahy intimated that overturning Obamacare would be as momentous, as divisive of the nation and as damaging to the court as was Bush v. Gore, which he asserts “shook the confidence of the American people in the Supreme Court.” But surely a striking fact about that decision is how equably Americans accepted it. This testified to the court’s durable prestige, which is a function of the court’s immunity to pressures from politicians. Public approval of the court is above 50 percent, that of Congress below 20 percent.

Leahy unsubtly intimated that to avoid “another 5-4 decision” Roberts should emulate “the leadership that Chief Justice Warren provided in the unanimous decision in Brown v. Board of Education.” It is, however, passing strange to compare the Obamacare case with Brown, implying that a less-than-unanimous decision would be dangerous.

The school desegregation case overturned the social order of an entire region and accelerated the transformation of the nation’s cultural norms. Obamacare is just an unpopular law enacted by grotesque logrolling (securing three Democratic senators’ votes with the “Louisiana Purchase,” the “Gator-aid” and the “Cornhusker Kickback”). Furthermore, Obamacare passed because grossly corrupt conduct by Justice Department prosecutors in the trial of Republican Sen. Ted Stevens of Alaska had cost him re-election.

Leahy tutored Roberts about “appropriate deference” to “the elected branch,” vacuously admonished him to be “a chief justice for all of us,” and absurdly asserted that the mandate is “consistent with the understanding of the Constitution” that “the American people have had for the better part of a century.” Jeffrey Rosen of George Washington Law School, writing in The New Republic, topped Leahy’s rhetorical extravagance by saying this is Roberts’ “moment of truth” because if the court overturns Obamacare 5-4, Roberts’ “stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.”

Oh? Viewed by whom? Perhaps by people who consider it “ideological” and somehow reprehensible that in the last full term, conservative Justices John Roberts and Sam Alito voted together 96 percent of the time, but who consider it principled and admirable that Justices Sonia Sotomayor and Elena Kagan voted together 94 percent of the time. Like-minded justices agree. So?

Why, exactly, would it be less “divisive” for the court to uphold the broadly disliked Obamacare 5-4 than to overturn it 5-4? But whether Obamacare is liked or detested is entirely irrelevant. The public’s durable deference toward the Supreme Court derives from the public’s recognition that the court is deferential not to Congress but to the Constitution.

Concerning which, it is cheeky of Rosen, a liberal, to lecture Roberts about jurisprudential conservatism, which Rosen says requires “restraint,” meaning deference to congressional liberalism. Such clumsy attempts to bend the chief justice are apt to reveal his spine of steel.

More like this story on LJWorld.com

Comments

"But surely a striking fact about that decision is how equably Americans accepted it."

After bush allowed the 911 attacks because he was, to quote him, to busy to "swat flies" (while being on vacation for the first 8 months of the presidency that was handed to him by the supreme court) and to heed the daily presidential warnings of the danger Bin Laden posed, the country was drawn together by these attacks and almost simultaneously decided to ignore the fact that this supreme court ruling was accepted because the media ( including wills) thought it was to divisive to the state of the country to contest the invalidity of the courts ruling.

"....equably Americans accepted it..." to wills equably means "Americans were freaked the f out by the 911 attacks" and the media gave the scotus a free pass for this reason.

Sorry Georgy porgy, you were the one who was "so equably ready to accept that the supreme court decision to disenfranchised the will (no relation) of the American voters in lieu of their partisan decision. We got a pretty fast pay back for allowing the supreme court to choose our president over the will of the people. Let see, 911 and then we got lied into two unfunded un winnable wars and then (and now) the disastrous wreck Bush left the economy in. Dream on George. Great job of re writing history to support your fantasy.

No, I was there awake watching every minute of every day what was going on. (As in paying attention) You were to busy sleeping through so you only believe the bs that you want to believe and you think it is history. Bush was on vacation for the first 8 months of the presidency awarded to him by the republican supreme court, He did ignore daily (sometimes all day long) briefings about Bin laden desire to highjack planes and fly them into buildings and he was president when the attacks ocured and they did happen so he did allow them to happen. As for you yahoo's, just keep dreaming your dreams. Sorry to wake you up for a brief moment.

The trick for Roberts is going to be invalidating the entire healthcare plan. "Obamacare" is about 90% made up of recycled Republican ideas, and the kingpin of those Republican ideas is the mandate to buy insurance, which is there at the behest of the insurance industry-- typically a stalwart for Republicans. This is also the main target of criticism, and really, about the only clause that could be taken down on constitutional grounds.

So how does Roberts manage to take down the whole thing, rather than just the insurance mandate? Not to worry-- the Roberts court has shown that arbitrary and capricious are well included in their bag of judicial tricks.

Ideas that were never proposed. You can have a discussion in the arena of ideas and come to conclusions like, "that's socialism" and not follow through. Just because and idea is discussed and then discarded in the past does not mean that it was necessarily affirmed as being worthy.

Heh-- there's absolutely nothing "socialist" about "Obamacare." But I understand that those on the far right believe that they can promote their insane hyper partisanship by merely squealing "socialist" on a regular basis.

Excellent column. Let's hope that the Choomer-in-Chief comes to regret most deeply the foolish words he spoke in publicly dressing down the Supreme Court in his State of the Union address in January of 2010.